“If This is Zealous Advocacy, The Angels Must Weep”

It is unusual for an attorney to hire his own counsel to defend his actions in representing a client. But, as in this case, it does happen.

Some of our readers, especially those who represent plaintiffs in Title VII (EEO) cases against the federal government, might find a recent decision by a United States Magistrate instructive, if not downright frightening. A Memorandum Opinion in Lucas v. Spellings (U.S.D.C. for the District of Columbia, Civil Action No. 01-2393 (JMF), 1/10/06), imposes sanctions against a plaintiff’s attorney, John F. Karl, Jr., for playing loose with the facts contained in his brief filed in opposition to the government’s Motion for Summary Judgment.

The magistrate, John M. Facciola, issued an order on 9/28/04, demanding that Mr. Karl show cause why he had not violated Federal Rule of Civil Procedure 11(b)(3) “in making certain factual contentions” in the brief he submitted on behalf of his client, an employee of the U.S. Department of Education. The counsel retained his own counsel to defend him against the Rule 11 proceeding.

Rule 11 was amended in 1983 to put more teeth into the ability to sanction attorneys who go over the line in federal courts. The Rule may be invoked by opposing counsel filing a motion seeking sanctions, or it may be invoked by the court on its own, as was the case here.

The Memorandum Opinion meticulously details each factual assertion that the Magistrate had issues with together with the actual facts. He finds several violations of Rule 11, many of which he characterizes as inferences disguised as facts. The Magistrate appears obviously upset with Mr. Karl, as evidenced by phrases such as “unquestionably a false statement” (Opinion, p. 12), “a horrible half-truth” (p. 17), “[t]hat line of ‘reasoning’ has as much substance as a house of cards” (p. 19), “[i]f this is zealous advocacy, the angels must weep” (p. 32), and “prevarications” (p. 33).

What appears to make the Magistrate even more upset is that he cannot find a way to impose a sanction greater than the $3,000 he orders up: “the $3,000 is just about one day of his time, compared to…the week I had to spend writing these opinions, I am firmly convinced that the $3,000 is an inadequate sanction to deter him and others from the behavior that I have had to condemn.”

Therefore, he indicates that he is separately referring Mr. Karl to the Court’s Committee on Grievance for an administrative inquiry and possible sanctions. (p. 34)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.